# Vinod Kumar Rai -Defendant v. Smt. Manju Rai -Plaintiffs

- **Citation:** (2006) 2 ILRA 862
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2006-07-20
- **Case number:** First Appeal No. 179 of 2001
- **Bench:** Barkat Ali Zaidi
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/vinod-kumar-rai-defendant-v-smt-manju-rai-plaintiffs-40667
- **Pages:** 4

## Headnote

Hindu Minority & Guardianship Act 1956
S-18 (2)(3)-Right of Maintenance-Trial
Court granted Rs.1500 per month to the
divorced
wife
and
one
daughterAppellate Court can sue motu-enhanced
amount husband earning Rs.7800/- per
month salary-daughter about 16 years
old girl-may be illegitimates one-heldRs.500/- much meager-enhanced much
meager-enhanced from Rs.500 to 2500/-
per month-similarly the amount of wife
also enhanced Rs.2500/- appellant to
bear the expenses of marriage of the
daughter-appeal dismissed.

Held: Para 13

In the other First Appeal No. No. 182 of
2001 (Vinod Kumar Rai Vs. Smt. Manju
Rai) by the husband which has been
allowed by this Court, a decree of
divorce has already been granted in his
favour. It is now well settled that a Court
may suo-moto grant maintenance, even
if it has not been claimed. Reference may
be made in this connection of the case of
Chandrika Vs. M. Vijaykumar (1996-1)
117 Mad. L.W., 695 where it has been so
held. There is as such, no legal bar in the
court
raising
the
amount
of
maintenance. In a case one judge may
grant
Rs.5000/-
per
month
while
another judge may grant Rs.10,000/-
per month and both may be right
because
no
specific
guidelines
for
determination of quantum have been
provided in the Act. In the case in hand,
we have to notice that the girl is around
16-17years old and the provision has to
be made for her marriage also besides
her education and other living expenses.
The amount granted by the trial court is,
therefore, manifestly meager and needs
to be multiplied 5 times, amounting to
Rs.25,00/-
per
month.
The
amount
granted to the wife also needs to be
raise a little so as to Rs.2500/- per
month
instead
of
Rs.15,00/-.
The
husband/ appellant will ofcourse bear
the expenses of the marriage of his
daughter when the time comes.
Case law discussed:
(1996-1) 117 Mad. LW 695-relied on

## Text

862 INDIAN LAW REPORTS ALLAHABAD SERIES [2006
coming to the conclusion that a person
who was found guilty of an act of
desertion in a disciplined force could not
be retained in the Force as that would no
doubt, send a wrong signal to the other
members of the disciplined Force and it
would also break the morale of the
disciplined Force whose prime duty is to
protect the nation and its citizens.

12. Having heard both the parties
and having gone through all the pleadings
and material evidence on record as well as
three orders impugned by the petitioner, I
am of the opinion that the impugned
orders do not contain any error. In fact,
the impugned orders have been passed
after giving to the petitioner not one but
three good opportunities to explain his
conduct. All the three orders are well
considered. All the three orders have
considered each and every submission
made by the petitioner in his defense. The
orders clearly reveal that firstly the illness
of the wife of the petitioner was not such
a serious one. Secondly, it reveals without
doubt that the petitioner left without
taking due permission. The orders also
reveal that on no stage, permission was
granted to the petitioner and he remained
absent
for
36
days.
The
medical
certificates which have been appended by
the petitioner and on the record do not
reveal that the illness of the wife was so
serious as it was a matter of life and death
which had to be attended immediately.
Even, if it had been a matter of life and
death, then too the petitioner who
belonged to a disciplined force should
have awaited permission for a minimum
period before leaving his duty.

13. I am firm in my mind that a
member of any disciplined Force has to
confirm to discipline even to the extent of
making sacrifices for the nation which he
takes a responsibility to serve. The
petitioner
was
a
member
of
the
disciplined Force and was posted in a
sensitive area, failed to maintain the
discipline and the trust imposed upon
him. I am of the opinion that he deserves
no sympathy and I am also firma1y of the
opinion that he has been given a fair
opportunity at three stages for defending
himself. The three orders passed against
him are well considered and in my
opinion are correct and deserve no
modification
from
this
Court.
The
punishment imposed upon the petitioner
is
fully
justified
in
the-facts
and
circumstances of the present case.

14. The writ petition is devoid of
merits and dismissed. There will be no
order as to costs.
 Petition Dismissed.
---------
APPELLATE JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 20.07.2006

BEFORE
THE HON'BLE BARKAT ALI ZAIDI, J.

First Appeal No. 179 of 2001

(Arising out of Suit no. 41 of 1997 Smt.
Manju Rai and another Vs. Vinod Kumar
Rai, decided on 23.4.2001 by Ist Addl.
District Judge, Ghazipur)

Vinod Kumar Rai ...Appellant-Defendant
Versus
Smt. Manju Rai ...Respondents-Plaintiffs

Counsel for the Appellant:
Sri Faujdar Rai
Sri C.K. Rai
Sri S.K. Upadhayay
Sri Brij Raj Singh
Sri R.P. Singh
2 All] Vinod Kumar Rai V. Smt. Manju Rai and another
863
Counsel for the Respondents:
Sri Atul Srivastava

Hindu Minority & Guardianship Act 1956
S-18 (2)(3)-Right of Maintenance-Trial
Court granted Rs.1500 per month to the
divorced
wife
and
one
daughterAppellate Court can sue motu-enhanced
amount husband earning Rs.7800/- per
month salary-daughter about 16 years
old girl-may be illegitimates one-heldRs.500/- much meager-enhanced much
meager-enhanced from Rs.500 to 2500/-
per month-similarly the amount of wife
also enhanced Rs.2500/- appellant to
bear the expenses of marriage of the
daughter-appeal dismissed.

Held: Para 13

In the other First Appeal No. No. 182 of
2001 (Vinod Kumar Rai Vs. Smt. Manju
Rai) by the husband which has been
allowed by this Court, a decree of
divorce has already been granted in his
favour. It is now well settled that a Court
may suo-moto grant maintenance, even
if it has not been claimed. Reference may
be made in this connection of the case of
Chandrika Vs. M. Vijaykumar (1996-1)
117 Mad. L.W., 695 where it has been so
held. There is as such, no legal bar in the
court
raising
the
amount
of
maintenance. In a case one judge may
grant
Rs.5000/-
per
month
while
another judge may grant Rs.10,000/-
per month and both may be right
because
no
specific
guidelines
for
determination of quantum have been
provided in the Act. In the case in hand,
we have to notice that the girl is around
16-17years old and the provision has to
be made for her marriage also besides
her education and other living expenses.
The amount granted by the trial court is,
therefore, manifestly meager and needs
to be multiplied 5 times, amounting to
Rs.25,00/-
per
month.
The
amount
granted to the wife also needs to be
raise a little so as to Rs.2500/- per
month
instead
of
Rs.15,00/-.
The
husband/ appellant will ofcourse bear
the expenses of the marriage of his
daughter when the time comes.
Case law discussed:
(1996-1) 117 Mad. LW 695-relied on

(Delivered by Hon'ble Barkat Ali Zaidi, J.)

1. A wife's suit for maintenance has
been decreed by the Addl. District Judge,
Ghazipur in her and daughter's favour
which brings her husband in appeal here.

2. From time immemorial, the
husband has been recognized as a bread
earner of the family and Section 18 of the
Hindu Minority and Guardianship Act,
1956,
hereinafter
called
the
''Act'
incorporates the said principle. It may be
noted that unlike section sections 125 of
Criminal Procedure Code, the ''Act'
recognizes only the husband as the
maintainer of the family irrespective of
the consideration whether the wife is able
to maintain herself or not.

3. The only obstruction in granting
of maintenance is provided in various sub
clauses of Sub-Clause (2) of Section 18 of
the Act, which is as follows:-

(2) A Hindu wife shall be entitled to life
separately from her husband without
forfeiting her claim to maintenance;-

(a) if he is guilty of desertion, that is to
say, of abandoning her without
reasonable cause and without her
consent or against her wishes , or of
willfully neglecting her;
(b) if he has treated her with such cruelty
as
to
cause
a
reasonable
apprehension in her mind that it will
be harmful or injurious to life with
her husband;
(c) if he is suffering from a virulent from
of leprosy;
864 INDIAN LAW REPORTS ALLAHABAD SERIES [2006
(d) if he has any other wife living;
(e) if he keeps a concubine in the same
house in which his wife is living or
habitually resides with a concubine
elsewhere;
(f) if he has ceased to be a Hindu by
conversion to another religion;
(g) if there is any other cause justifying
her living separately."

4. In the case in hand what has to be
seen is whether any of the circumstances
enumerated therein exist as to bar the
respondent (Smt. Manju Rai) right to
receive the maintenance.

5. The evidence in the case consists
merely the oral statement of the husband
and the wife who have reiterated their
respective contentions.

6. In this case, there is little
difficulty in holding that the husband has
treated the wife with cruelty because he
has hurled the charges of infidelity against
her and that is conduct cruel enough to
justify
the
wife's
demand
to
live
separately and to receive maintenance.

7. The only other thing which has to
be examined is whether the wife is
unchaste as provided in Clause- 3 of
Section 18 of the Act as noted below:-

"(3) A Hindu wife shall not be
entitled
to
separate
residence
and
maintenance from her husband if she is
unchaste or ceases to be a Hindu by
conversion to another religion".

8. It is for the husband to prove that
the wife is unchaste because it is he, who
levels the allegations and in accordance
with Section 101 of the Evidence Act, it is
on him to prove the same. It is no doubt
true that it is difficult to prove unchastity
but it is also true that it is easy to level
such allegations.

9. When a matter comes to the
Court, proof is required because proof is
the corner-stone of the Court Procedure. It
is not possible to the Court to accept any
such allegation without proof. In the case
in hand, there is no proof whatsoever
except a bare allegation. It is not possible,
therefore, for the Court to accept the
husband's contention of unchastity against
the wife-respondent. The hitch placed by
sub Clause (3) of Section 18 of the Act,
cannot, therefore, obstruct the grant of
maintenance to the wife.

10. The controversy, whether the
daughter is a legitimate child of the
husband-appellant is irrelevant for the
purposes of the case because Section 20
of the Act makes no discrimination
between a legitimate or illegitimate child
for the grant of maintenance.

11. The only question, which
therefore, remains is that of quantum of
maintenance to be granted to the wife.
The trial Court has granted Rs. 1500/- per
month
to
the
wife-respondent
and
Rs.500/- per month to minor daughter.

12. Section 23 of the Act provides
some guidelines for determination of
question of maintenance. In the present
case, wife has no source of income. We
have only to see the income of the
husband for determining the amount of
maintenance. The husband is a Sepoy in
the Army. He has not produced any
document with regard to the amount of
his salary, which he could and should
have done and has only stated that he gets
Rs. 5000/- per month as salary. The wife-
2 All] Rajesh Singh and others V. Vidyadhiraj Pandey and others
865
respondent on the contrary says that his
salary Rs. 7800/- per month. The trial
court accepted the wife's contention that
his salary is Rs. 7800/- and that seems to
be
the
right
in
view
of
these
circumstances.
Without
any
specific
percentage or proportion been prescribed
the fixing of the amount of maintenance
has, of necessity to be a little arbitrary.

13. In the other First Appeal No. No.
182 of 2001 (Vinod Kumar Rai Vs. Smt.
Manju Rai) by the husband which has
been allowed by this Court, a decree of
divorce has already been granted in his
favour. It is now well settled that a Court
may suo-moto grant maintenance, even if
it has not been claimed. Reference may be
made in this connection of the case of
Chandrika Vs. M. Vijaykumar (1996-1)
117 Mad. L.W., 695 where it has been so
held. There is as such, no legal bar in the
court raising the amount of maintenance.
In a case one judge may grant Rs.5000/-
per month while another judge may grant
Rs.10,000/- per month and both may be
right because no specific guidelines for
determination of quantum have been
provided in the Act. In the case in hand,
we have to notice that the girl is around
16-17years old and the provision has to be
made for her marriage also besides her
education and other living expenses. The
amount granted by the trial court is,
therefore, manifestly meager and needs to
be multiplied 5 times, amounting to
Rs.25,00/-
per
month.
The
amount
granted to the wife also needs to be raise a
little so as to Rs.2500/- per month instead
of Rs.15,00/-. The husband/ appellant will
ofcourse bear the expenses of the
marriage of his daughter when the time
comes.

O R D E R

The result is that the appeal of the
husband-appellant stands dismissed and
he is directed to pay Rs.25,00/- per month
as maintenance to the respondent- Manju
Rai till she survives and Rs.25,00/- per
month to his daughter till she is married
by him. The amount, at this rate, shall be
deducted, from his monthly salary from
the date of this order because fixation of
any earlier date for the same will cause
adjustment problem. Necessary directions
shall
be
issued
to
the
authorities
responsible for the payment of salary to
the appellant-husband.
---------
APPELLATE JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 19.07.2006

BEFORE
THE HON'BLE DR. B.S. CHAUHAN, J.
THE HON'BLE DILIP GUPTA, J.

Special Appeal No.614 of 2006

Rajesh Singh and others
...Appellants
Versus
Vidyadhiraj Pandey & others ...Respondents
With
Special Appeal No. 615 of 2006, Special
Appeal No.616 of 2006,Special Appeal
No. 640 of 2006, Special Appeal No.730
of 2006

Counsel for the Appellants:
Sri A.K. Gupta
Sri R.K. Jain
Sri G.P. Singh
Sri N.K. Rastogi
Sri R.N. Singh
Sri V.S. Sinha
Sri Abhishek Mayank
Sri Shailendra